Tag Archive for: Rome II

CJEU provides guidance as to how to identify an OMP

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In Agostinho da Silva Martins v Dekra Claims Services Portugal SA (C-149/18), between Mr Agostinho da Silva Martins, who suffered damages in a car accident, and the insurance company Dekra Claims Services Portugal SA, the CJEU was called to rule on two different issues of qualification: one related to the interpretation of Article 16 of the Rome II Regulation on overriding mandatory provisions and the other related to interpretation of Article 28 of Directive 2009/103 on protection of victim in case of a motor vehicle accident.

Regarding the overriding mandatory provisons under the Rome II Regulation, the CJEU refers to the definition in Article 9(1) of the Rome I Regulation and reasons that in order to qualify a national rule on statutory limitation period as an overriding mandatory the national court has to be satisfied that there exist “particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable”. The relevant part of the CJEU holding uses careful phrasing suggesting restrictive interpretation of overriding mandatory rules: a rule

cannot be considered to be an overriding mandatory provision, […] unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable.

Regarding the conflict of law nature of Article 28 of Directive 2009/103, which regulates the Member States’ obligation to provide measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected, the CJEU states that this is not the conflict-of-law provision and that, consequently, it does not take precedence over the Rome II Regulation under Article 27 of the latter.

Book: Marongiu Buonaiuti, Le obbligazioni non contrattuali nel diritto internazionale privato

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FMB-Le-obbligazioni-non-contrattuali__1338079.gifFabrizio Marongiu Buonaiuti (Univ. of Macerata) has recently published “Le obbligazioni non contrattuali nel diritto internazionale privato” (Non-contractual Obligations in Private International Law ) (Giuffrè, 2013). An abstract has been kindly provided by the author (the complete table of contents is available on the publisher’s website):

The volume deals with non-contractual obligations in private international law, addressing both issues related to jurisdiction and to conflict of laws.

As concerns jurisdiction, the volume discusses the problems posed by the application of the rules on jurisdiction in civil and commercial matters as contained in EC Regulation No. 44/2001 (s.c. “Brussels I”) to disputes concerning non-contractual obligations. Special attention is devoted to the specific rule of jurisdiction in matters of tort or delict under Article 5.3 of the said Regulation (to be replaced, without modifications as to the substance, by Article 7.2 of EU Regulation No. 1215/2012 providing for its recast) and to its coordination with the other rules of jurisdiction. The volume addresses also the more recent case law of the European Court of Justice concerning the application of the said rule to non-contractual obligations arising from activities performed through the Internet and implying violations either of privacy and personality rights or of intellectual property rights.

As concerns conflict of laws, the volume examines the rules contained in EC Regulation No. 864/2007 (s.c. “Rome II”) on the law applicable to non-contractual obligations, stressing parallelism and differences in respect of the solutions achieved as concerns jurisdiction under the Brussels I Regulation. Furthermore, the volume deals with the problems of coordination of the conflict of laws rules as contained in the Rome II Regulation with the rules contained in international conventions applicable in the field concerned, to which the Regulation grants priority. The volume finally addresses the domestic rules on conflict of laws as contained in Law No. 218 of 31 May 1995 providing for the reform of the Italian system of private international law, which apply residually to non-contractual obligations not governed by the Regulation.

Title: “Le obbligazioni non contrattuali nel diritto internazionale privato“, by Fabrizio Marongiu Buonaiuti, Giuffrè (series: Pubblicazioni del Dipartimento di Giurisprudenza dell’Università degli Studi di Macerata, Nuova serie, vol. 139), Milano, 2013, X – 254 pages.

ISBN: 9788814182419. Price: EUR 26. Available at Giuffrè.

Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr

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As we pointed out in a previous post, a very rich collection of essays in honor of Prof. Kurt Siehr on his 75th birthday has been recently published by Eleven International Publishing and Schulthess, under the editorship of Katharina Boele-Woelki, Talia Einhorn, Daniel Girsberger and Symeon Symeonides: Convergence and Divergence in Private International Law – Liber Amicorum Kurt Siehr. A previous Festschrift was dedicated to Prof. Siehr in 2000: “Private Law in the International Arena – From National Conflict Rules Towards Harmonization and Unification: Liber amicorum Kurt Siehr” (see Google Books).

Here’s the table of contents:

Part I: General Aspects of PIL Law-Making.

  • Talia Einhorn, American vs. European Private International Law – The Case for a Model Conflict of Laws Act (MCLA);
  • Peter Hay, Comparative and International Law in the United States – Mixed Signals;
  • Herbert Kronke, Connecting Factors and Internationality in Conflict of Laws and Transnational Commercial Law;
  • Jim Nafziger, Democratic Values in the Choice-of-Law Process;
  • Anton K. Schnyder, Keine Berührungsangst des Schweizerischen Bundesgerichts im Umgang mit Eingriffsnormen;
  • Frank Vischer, ‘Revolutionary ideas’ and the Swiss Statute on Private International Law;
  • Jun Yokoyama, Renvoi in Japanese Private International Law.

Read more

Publication: Galgano & Marrella, Diritto e Prassi del Commercio Internazionale

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Galgano-Marrella Diritto e Prassi del Commercio InternazionaleProf. Francesco Galgano (emeritus in the University of Bologna Law School
and founder of Galgano Law Firm) and Prof. Fabrizio Marrella (“Cà Foscari” University of Venice) have recently published “Diritto e Prassi del Commercio Internazionale” (CEDAM, 2010), vol. LIV of the “Trattato di Diritto Commerciale e di Diritto Pubblico dell’Economia“, one of the most authoritative Italian legal series, directed by Prof. Galgano.

A presentation has been kindly provided by the authors (the complete TOC is available on the publisher’s website):

The problems affecting cross-border transactions from a legal standpoint as well as arbitration have boomed in the last years. This book is the first systematic and accurate analysis of International Business Law updated to the most important reforms in the European Union such as: the Lisbon Treaty; Regulation Rome I on the law applicable to contractual obligations and Regulation Rome II on the law applicable to non contractual obligations. New competences for international trade negotiations have been attributed by Member States to the EU. Moreover, an entirely new choice of law regime has been introduced in the European Union affecting world international contracts and transnational arbitration. In addition,new instruments have been generated from the business side such as the new UCP 600 (the Uniform Customs and Practice for Documentary Credits, i.e. a set of rules on the issuance and use of letters of credit utilised by bankers and commercial parties in more than 175 countries in trade finance).

Beautifully written by two world reputed Authors in the field, the purpose of this work is to closely examine actors and sources of International Commercial Law with particular reference to contracts for the sale of goods and other forms of exports; licensing of intellectual property; and foreign direct investment.

Title: Diritto e Prassi del Commercio Internazionale, by Francesco Galgano and Fabrizio Marrella, CEDAM (series: Trattato di Diritto Commerciale e di Diritto Pubblico dell’Economia, vol. LIV), Padova, 2010, XLVIII-956 pages.

ISBN: 978-88-13-28228-8. Price: EUR 98.

Bertoli: Party Autonomy and the Rome II Regulation

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Paolo Bertoli (University of Insubria) has published two interesting articles (in English) on the role of party autonomy in the Rome II regulation. Here are the references:

Choice of Law by the Parties in the Rome II Regulation, in Rivista di diritto internazionale, 2009, pp. 697-716.

Party Autonomy and Choice-Of-Law Methods in the “Rome II” Regulation on the Law Applicable to Non-Contractual Obligations, in Il Diritto dell’Unione europea, 2009, pp. 229-264.

An abstract has been kindly provided by the author:

The articles discuss, also in comparison with American private international law theories and methods, the innovative provisions relating to party autonomy set forth in the EC “Rome II” regulation on the law applicable to non-contractual obligations, the choice-of-law methods that such provisions follow, and their role and significance in the framework of the European “federalized” private international law system. In particular, the articles demonstrate that a distinction can, and should, be made between cases in which party autonomy operates in the context, and demonstrates the existence in Rome II, of: (i) a traditional (or, in American terminology, “jurisdiction-selecting”) choice-of-law method, (ii) a “content-oriented” choice-of-law method, and (iii) a European lex fori approach.

With reference to the development of EC private international law, see also the author’s thorough analysis of the role of the European Court of Justice, in his volume “Corte di giustizia, integrazione comunitaria e diritto internazionale privato e processuale” (Giuffrè, 2005) and “The Court of Justice, European Integration and Private International Law” (in Yearbook of Private International law, vol. VIII-2006, pp. 375-412: the article can be browsed through the Libreka! website).